The Volokh Conspiracy

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North Carolina State Supreme Court Makes a Bold Move

The court declares that legislators elected in gerrymandered districts cannot fully exercise the powers of their office


The North Carolina state supreme court likes to play with fire.

Just a few months ago some Republicans were talking about the possibility of impeaching members of that court as it deliberated on whether to strike down legislative maps drawn after the 2020 census as unconstitutional partisan gerrymanders. The court eventually split along partisan lines to strike down the Republican drawn maps, and the case is now before the U.S. Supreme Court.

Today the state court again split along partisan lines in another extraordinary case. The electoral map that the state legislature had drawn after the 2010 census had previously been declared unconstitutional due to racial gerrymanders, but legislators were allowed to be elected and serve out their terms until a new map could be approved. The court today declared that those legislators had only limited authority given the flawed maps and some legislative tasks they were not allowed to perform. Specifically, the majority determined that the legislature was barred from proposing some constitutional amendments. Although the case was remanded back to the trial court for further proceedings, the clear implication is that the state constitutional amendment that had been proposed by that legislature and ratified by the voters that had empowered the legislature to adopt a voter ID law is invalid.

The principles of popular sovereignty and democratic self-rule as embodied in article I, sections 2 and 3 mean that individuals can only exercise the sovereign power that the people have transmitted to the legislature if they validly hold legislative office. The constitution defines and structures the processes by which individuals assume offices that permit them to exercise sovereign power, and sovereign power can only be lawfully exercised by individuals who have come into office through the processes established by the constitution for that very purpose. Burke v. Elliott (NC 1844). The legitimacy of any individual officer's claim to exercise sovereign power depends upon the legitimacy of the process by which that individual came to assume the office to which sovereign power has been delegated.

Consistent with the principles of popular sovereignty and democratic self-rule, only the people can change the way sovereign power is allocated and exercised within North Carolina's system of government. And, through their constitution, the people assigned the General Assembly a vital role in the amendment process. Specifically, the constitution authorizes the General Assembly to initiate the process of enacting constitutional amendments by "adopt[ing] an act submitting the propos[ed] [constitutional amendments] to the qualified voters of the State for their ratification or rejection," provided that "three-fifths of all the members of each house shall adopt [the] act." is undisputed that three-fifths of the members of each house adopted acts submitting the proposals to add the Voter ID and Tax Cap Amendments to the North Carolina Constitution, and that a majority of voters ratified both amendments in 2018. The sole question before us is whether the legislators who passed the bills submitting these two amendments to the voters could validly exercise the authority conferred upon the legislature by the people in article XIII, section 4.

The court lays out a new test for determining whether a constitutional amendment proposed by a legislature and ratified by the voters should nonetheless be struck down as constitutionally invalid.

Thus, when the votes of legislators elected due to an unconstitutional gerrymander could have been decisive in enacting a bill proposing a constitutional amendment, courts must assess whether there is a substantial risk that the challenged amendment will (1) immunize legislators from democratic accountability; (2) perpetuate the ongoing exclusion of a category of voters from the political process; or (3) intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators' election. If any of these factors are present, then the balance of equities requires the court to invalidate the challenged amendment. If these factors are not presentor if the legislators elected due to an unconstitutional gerrymander were not so numerous as to be potentially decisive in the vote to put a proposed amendment to the peoplethe challenged amendment must be left in place.

The majority concludes,

"We should ever be mindful that the Constitution to a great extent is the rudder to keep the ship of state from off the rocks and reefs." Hinton v. Lacy (NC 1927). Although the questions raised in this appeal are novel, the answers can be found in the principles that are the foundation of North Carolina's system of government as expressed in multiple provisions of the North Carolina Constitution, the people's fundamental law. The people have reserved to themselves the power to amend or replace these principles and provisions. While they have assigned the legislature a role in the amendment process, the potentially transformative consequences of amendments that could change basic tenets of our constitutional system of government warrant heightened scrutiny of amendments enacted through a process that required the participation of legislators whose claim to represent the people's will has been disputed. Consistent with these constitutional principles and provisions, we conclude that acts proposing constitutional amendments passed by a legislature composed of a substantial number of legislators elected from unconstitutionally racially gerrymandered legislative districts, after the unlawfulness of those districts has been conclusively established, are not automatically shielded by application of the de facto officer doctrine.

The three justices in dissent practically begged the U.S. Supreme Court to overturn this case as a potential violation of the republican guarantee clause of the U.S. Constitution.

Breathtaking. Will be interesting to see what comes next.

The opinion can be found here. I have already edited the case for the companion site to the Howard Gillman, Mark Graber, and Keith Whittington American Constitutionalism casebook. Happy to share it for anyone interested.